Professional Documents
Culture Documents
8553
UNITED STATES v. BONDS 8557
COUNSEL
In 2001, Barry Bonds hit 73 home runs for the San Fran-
cisco Giants. Also in 2001, as well as in prior and succeeding
years, BALCO Laboratories, Inc. in San Francisco recorded,
under the name “Barry Bonds,” positive results of urine and
blood tests for performance enhancing drugs. In 2003, Bonds
swore under oath he had not taken performance enhancing
drugs, so the government is now prosecuting him for perjury.
But to succeed it must prove the tested samples BALCO
recorded actually came from Barry Bonds. Hence, this appeal.
I. Background
III. Discussion
The district court held that FRE 807, the residual exception,
did not apply. The court observed that it was designed for
“exceptional circumstances.” See Fong v. American Airlines,
626 F.2d 759, 763 (9th Cir. 1980). FRE 807, previously FRE
803(24), provides:
[2] Our sister circuits have also given district courts wide
discretion in the application of FRE 807, whether it be to
admit or exclude evidence. See, e.g., U.S. v. Hughes, 535 F.3d
880, 882-83 (8th Cir. 2008) (upholding district court decision
not to admit evidence under FRE 807); FTC v. Figgie Intern.
Inc., 994 F.2d 595, 608-09 (9th Cir. 1993) (upholding admis-
sion under residual exception even where trial court failed
adequately to explain reasoning). Our research has disclosed
only one instance where a circuit court reversed a district
court to require admission of a statement under FRE 807. See
U.S. v. Sanchez-Lima, 161 F.3d 545, 547-48 (9th Cir. 1998).
However, the hearsay statements in that case were videotaped
and under oath, and thus had indicators of trustworthiness that
Anderson’s statements do not. See id. More important, the cir-
cumstances were “exceptional” because the government had
deported the witnesses, so the statements remained the only
way the defendants could present their defense. Therefore, the
government is asking this Court to take an unprecedented step
in using 807 to admit the statements of a declarant who has
chosen not to testify and whose statements lack significant
indicators of trustworthiness.
IV. Conclusion
I dissent.
I. Background
A. Procedural Background
The following facts are drawn from Bonds’s grand jury tes-
timony: Anderson and Bonds have known each other since
they met in grade school. They lost touch after high school,
but reconnected in 1998. At that time, Bonds played for the
San Francisco Giants; he began weight training with
Anderson—a professional weight lifting trainer—as his
coach. When Bonds testified to the grand jury in 2003, Bonds
said he continued to work out daily under Anderson’s coach-
ing.
Later, Anderson told Bonds the tests came back and “ev-
erything is fine.” Anderson did not give Bonds any written
reports explaining the test results and Bonds did not request
additional details. Anderson did, however, tell him how much
food to consume and what vitamins to take.
If the trial court did not apply the correct legal standard, or
its application of the correct legal standard to the facts was
illogical, implausible, or without support in inferences that
may be drawn from the facts in the record, then the trial court
abused its discretion. Id. If the error was not harmless, then
we must reverse. Id.
III. Analysis
B. Anderson’s Task
Bonds also had the right to instruct Anderson. Not only did
Bonds have that right, but he exercised it by instructing
Anderson when and where Anderson was to collect Bonds’s
samples and when and where Anderson was to deliver the
samples. The majority is correct that Bonds did not instruct
Anderson regarding the 30-minute limit, but that limit did
provide one measure by which Bonds could evaluate Ander-
son’s actions. The point, however, is that Bonds did instruct
Anderson when and where to collect his samples—at his
home in San Francisco. The majority seems to argue that the
fact that Bonds’s house was also a suitable location under the
30-minute requirement is incompatible with Bonds’s instruct-
ing Anderson, Majority Op. 8573-74, but that is illogical.
There were many places they could meet that were within 30
minutes of BALCO; Bonds instructed Anderson to come to
Bonds’s house and not to another location, most likely
because it was a private place where Bonds’s personal doctor
would be comfortable drawing his blood and collecting his
urine. Further, Bonds controlled when he could be tested
because Anderson could not complete his task without
Bonds’s samples.7
But the district court did not look to the full Task; it stated:
“[t]he rationale for Rule 801(d)(2)(C) simply does not apply
here. If a party authorizes a declarant to speak on his behalf
and the declarant makes an admission, Rule 801(d)(2)(C) pro-
vides a mechanism for that admission to be used against the
party. Trainers, unlike lawyers, brokers, sales personnel, and
those with supervisory responsibilities, are not generally
authorized to speak for principals.” 2009 WL 416445, at *5.
The district court’s standard—that trainers are not generally
authorized to speak for their trainees—is correct, but only if
read in isolation. The district court does not explain how that
general standard applies to this particular case. We are left to
guess why the district court reached the conclusion that
Anderson was not authorized based on this general standard.
But that situation is not relevant here. Not only was a “three
of four” situation not discussed by Bonds before the district
court or this court, but the record does not provide any basis
UNITED STATES v. BONDS 8609
for a claim that Anderson delivered more samples than Bonds
authorized to be tested. Remember, the record is clear and
undisputed that each sample was gathered from Bonds’s doc-
tor at Bonds’s home contemporaneously, in Bonds’s presence,
with Bonds donating the sample. As Bonds testified regarding
the collection of his blood and urine samples: “[W]e just gave
it to Greg [Anderson].” The factual record is without dispute:
Each and every sample was collected with Bonds’s coopera-
tion and consent. There is not a word in the record that Ander-
son handled anybody else’s samples, or what possible
motivation he could have had to frame Bonds with another’s
blood. Just the opposite. Anderson has been willing to stay in
jail for an extended period for contempt of court to avoid tes-
tifying against Bonds.
IV. Conclusion
17
Finally, like the majority, I do not think the district court erred in
deciding the government’s evidence was not admissible under the business
records exception, Rule 803(6), or the residual exception, Rule 807.